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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 42087

RANDY HOFFER and GALYENA

HOFFER, husband and wife, as guardians of

the minor child plaintiff, J.S.H.,

Plaintiffs-Respondents,

v.

SCOTT A. SHAPPARD, D.O.; SAINT

ALPHONSUS REGIONAL MEDICAL

CENTER, dba SAINT ALPHONSUS

MEDICAL GROUP; and GENESIS

MEDICAL CENTER, P.A.,

Defendants-Appellants,

and

STANLEY J. WATERS, M.D; STANLEY J.

WATERS, dba AMERICANA

ORTHOPAEDICS; SHANA L. TUBACH,

M.D.; and SAINT ALPHONSUS

PHYSICIANS, P.A., an Idaho corporation,

Defendants.

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Boise, September 2015 Term

2016 Opinion No. 105

Filed: September 28, 2016

Stephen Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District of the State of

Idaho, Ada County. Hon. Gerald F. Schroeder, Senior District Judge.

The judgment of the district court is affirmed.

Powers Tolman Farley, PLLC, Boise, for appellants Scott A. Shappard, D.O. and

Genesis Medical Center, P.A. Raymond D. Powers argued.

Brassey Crawford, PLLC, Boise, for appellant Saint Alphonsus Regional Medical

Center. Andrew C. Brassey appeared.

Rossman Law Group, PLLC, Boise, for respondents. Eric S. Rossman argued.

_______________________________________________

HORTON, Justice.

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Scott Shappard, D.O., Genesis Medical Center, P.A., and St. Alphonsus Regional

Medical Center (collectively “Providers”) appeal from an $847,974.46 judgment entered against

them after a jury trial. Randy and Galyena Hoffer brought this action on behalf of their minor

child, J.H. The jury found that Dr. Shappard negligently and recklessly failed to diagnose J.H.’s

medical condition. The district court denied Providers’ post-trial motions seeking to correct the

verdict, a new trial, and judgment notwithstanding the verdict (JNOV). Providers appeal from the

denial of these motions and further assert that the district court erred at trial by refusing to send

an exhibit back to the jury room for deliberations and in its jury instructions. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case relates to J.H.’s developmental dysplasia of the hip (DDH), which is an

abnormality involving a joint dislocation at the hip. Early diagnosis of DDH in children is

important because early treatment is much easier, less invasive, less complicated, and more

effective. Risk factors for a child to develop DDH include: breach birth, female gender,

premature birth, first-born child, and high birth weight. In order to diagnose DDH, a physician

examines the child, looking for palpable hip instability, unequal leg lengths, asymmetrical skin

folds, and irregular gait.

J.H., a female child, was born five weeks short of full term in September of 2008. She

was Galyena’s first child. Various doctors who examined J.H. during the first six weeks of her

life did not observe signs of DDH.

Between November 13, 2008, and October 5, 2009, Dr. Shappard saw J.H. for five well-

baby examinations. Evidence presented at trial indicated that J.H. had an asymmetrical skin fold

at all five examinations. Galyena repeatedly asked Dr. Shappard, through verbal and written

questions, about the fold but Dr. Shappard did not recognize the fold as a concern. Galyena

repeatedly expressed concern, both verbally and in writing, that J.H.’s legs were not the same

length. Dr. Shappard did not find a difference in leg length. At J.H.’s final examination by Dr.

Shappard, Galyena asked Dr. Shappard about J.H. walking tip-toe on only one leg. Galyena’s

testimony and notes regarding her questions reflect that Dr. Shappard responded that such tip-toe

walking was normal for children until age two. Galyena also testified that Dr. Shappard never

asked to see J.H. walk with parental assistance.

One of the Hoffers’ expert witnesses, Dr. David Butuk, opined that Dr. Shappard failed to

comply with the community standard of health care practice because of his disregard for the

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presence of an obvious asymmetrical skin fold, a difference in leg length, and repeated

expressions of parental concern. Dr. Butuk testified that: “Any parent complaint that comes on

repeated visits of any concern like that, it’s a big red flag. The standard of care is that you have

to address that and start moving forward with other ways.”

J.H. subsequently had problems while learning to walk that appear to have resulted from

DDH. Because of these problems, the Hoffers took her to an orthopedic specialist, Dr. Stanley

Waters, for two visits in February and December of 2010. Dr. Waters recognized that J.H. had

DDH, but did not tell the Hoffers that she needed immediate treatment. Galyena testified that Dr.

Waters told her that “God and nature will take care” of J.H.’s hip.

In May of 2012, the Hoffers took J.H. to Dr. Larry Showalter. Dr. Showalter identified an

inch and a half leg difference and the presence of an asymmetrical skin fold. Dr. Showalter

immediately ordered x-rays and subsequently performed open reduction surgery in August of

2012, when J.H. was four years old. He testified that the results of the surgery have “so far” been

good, but there are risks of “big complications” in the future.

The jury received evidence for nearly two weeks. In addition to medical testimony, the

jury heard testimony about J.H.’s future damages. The Hoffers’ vocational rehabilitation expert,

Douglas Crum, testified that J.H. would need two to three hip replacement surgeries during her

lifetime, each resulting in about a 15% loss of function. The Hoffers’ economic expert, Dennis

Reinstein, testified as to the present value of an individual’s expected earning capacity based on

four different levels of education.

By special verdict, the jury found that Dr. Shappard had failed to meet the applicable

standard of health care practice and that Dr. Shappard’s conduct was reckless. The jury

apportioned 20% fault to Dr. Waters1 and the remaining 80% to Dr. Shappard. The jury awarded

$289,000 in non-economic damages and $750,000 in economic damages. Providers’ counsel

received permission from two jurors to speak with them. The two jurors told Providers’ counsel

that the jury had inadvertently switched the numbers for the non-economic and economic

damages award on the special verdict form, but the figures were otherwise correct. Affidavits to

this effect from both jurors were filed. The other ten jurors, including the presiding juror, did not

speak with Providers’ counsel.

1 Dr. Waters settled with the Hoffers prior to trial but was included on the special verdict form for the purpose of

apportioning fault.

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The district court entered judgment against Providers. Providers moved for JNOV, a new

trial, and to correct the verdict. The district court denied these motions. Providers timely

appealed.

II. STANDARD OF REVIEW

“A trial court has broad discretion in ruling on a motion for a new trial.” Blizzard v.

Lundeby, 156 Idaho 204, 206, 322 P.3d 286, 288 (2014). When considering a challenge to a

discretionary decision by the trial court, we consider:

(1) whether the trial court correctly perceived the issue as one of discretion; (2)

whether the trial court acted within the outer boundaries of its discretion and

consistently with the legal standard applicable to the specific choices available to

it; and (3) whether the trial court reached its decision by an exercise of reason.

Id. (quoting Burggraf v. Chaffin, 121 Idaho 171, 173, 823 P.2d 775, 777 (1991)). “The trial court

is in a far better position to weigh the demeanor, credibility, and testimony of witnesses, and the

persuasiveness of all the evidence. Appellate review is necessarily more limited.” Quick v.

Crane, 111 Idaho 759, 770, 727 P.2d 1187, 1198 (1986). “Although this Court necessarily must

review the evidence, it primarily focuses on the process by which the district court reached its

decision, not on the result of the district court’s decision.” Karlson v. Harris, 140 Idaho 561,

568, 97 P.3d 428, 435 (2004).

This Court reviews jury instructions to determine “whether the instructions as a whole

fairly and adequately presented the issues and stated the law.” Schmechel v. Dillé, 148 Idaho

176, 187, 219 P.3d 1192, 1203 (2009). “Whether the jury instructions fairly and adequately

present the issues and state the applicable law is a question of law over which this Court

exercises free review.” Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 51, 995 P.2d 816,

821 (2000). “Reversible error occurs if an instruction misleads the jury or prejudices a party.” Id.

“[T]he interpretation of a rule of evidence, like the interpretation of a statute, is reviewed

de novo.” State v. Moore, 131 Idaho 814, 821, 965 P.2d 174, 181 (1998).

This Court employs the same standard of review as the district court when reviewing a

decision to grant or deny a motion for JNOV. April Beguesse, Inc. v. Rammell, 156 Idaho 500,

509, 328 P.3d 480, 489 (2014).

A jury verdict must be upheld if there is evidence of sufficient quantity and

probative value that reasonable minds could have reached a similar conclusion to

that of the jury. In reviewing a grant or denial of a motion for JNOV the court

may not reweigh evidence, consider witness credibility, or compare its factual

findings with that of the jury. The court reviews the facts as if the moving party

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had admitted any adverse facts, drawing reasonable inferences in favor of the

non-moving party.

Id. (quoting Athay v. Rich Cnty., 153 Idaho 815, 825, 291 P.3d 1014, 1024 (2012)).

III. ANALYSIS

Providers raise trial-related issues concerning an exhibit and the jury instructions in

addition to challenging the denial of their post-trial motions for correction of the verdict, a new

trial, and JNOV. We address these issues in turn.

A. The district court did not abuse its discretion by denying the motion for new trial

under Rule 59(a)(7) based upon its refusal to provide the jury with Exhibit LL

during deliberations.

Exhibit LL was an article from Pediatrics, the “Official Journal of the American

Academy of Pediatrics.” The exhibit contained a diagram depicting a clinical algorithm for use

in diagnosing DDH. During the trial, defense counsel used the algorithm to demonstrate that Dr.

Shappard followed correct procedures. The parties later disputed whether the exhibit should be

provided to the jury during its deliberations. The district court held the jury would not be given

Exhibit LL, stating:

The information is before the jury, reference is made to it, they take notes,

they know what that is. I don’t know what is in the rest of that article other than

that diagram, and the risk of sending something in at this point that may have

information that has not been explored may or may not exist, but I’m going to

treat it as if it does exist, so I will not send that into the jury.

Afterward, Providers challenged this ruling in the motion for a new trial but the district court did

not change its ruling. The district court observed that even if the failure to send the exhibit back

to the jury room was error, such error would be harmless because the algorithm was discussed

before the jurors who had the opportunity to take notes.

Providers attack this ruling, arguing that the exhibit should have been admitted under

I.R.E. 803(18) and Idaho Code section 9-402, that the Hoffers waived any objection to Exhibit

LL’s admission by waiting too long to object, and the Hoffers waived their argument that Exhibit

LL should not be admitted because they did not object on hearsay grounds. Providers further

argue that this resulted in prejudice because defense counsel told the jurors during closing

argument that they would be able to view the algorithm during their deliberations.

Idaho Rule of Civil Procedure 59(a) authorizes a trial court to grant a new trial on several

grounds. “[T]he trial court’s standard for different grounds enumerated in I.R.C.P. 59(a) varies

considerably.” Quick, 111 Idaho at 771, 727 P.2d at 1199; see also Carrillo v. Boise Tire Co.,

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152 Idaho 741, 749, 274 P.3d 1256, 1264 (2012). “Under the Idaho Rules of Civil Procedure, a

trial court may order a new trial if it determines that legal error occurred during the trial.”

Goodspeed v. Shippen, 154 Idaho 866, 870, 303 P.3d 225, 229 (2013) (citing I.R.C.P. 59(a)(7)).

However, the Court does not consider errors that do not affect the parties’ substantial rights. Id.;

see also I.R.C.P. 61.

The district court did not err by refusing to send Exhibit LL to the jury room during

deliberations. Idaho Rule of Evidence 803(18) provides:

Learned Treatises. To the extent called to the attention of an expert

witness upon cross-examination or relied upon by the expert witness in direct

examination, statements contained in published treatises, periodicals, or

pamphlets on a subject of history, medicine, or other science or arts, established

as a reliable authority by testimony or admission of the witness or by other expert

testimony or by judicial notice. If admitted, the statements may be read into

evidence but may not be received as exhibits, except upon motion and order for

good cause shown.

We have not previously interpreted this rule with regard to allowing learned treatises in the jury

room. When a federal rule is identical in material respects to an Idaho rule, this Court may

consider decisions of the federal courts interpreting the federal rule when interpreting the Idaho

rule. Martin v. Hoblit, 133 Idaho 372, 376 n. 3, 987 P.2d 284, 288 n. 3 (1999). The last sentence

of Federal Rule of Evidence 803(18) is materially identical to the Idaho rule, omitting only

Idaho’s exception which permits the statements to be received as an exhibit upon a showing of

good cause. The final sentence of the federal rule has been interpreted as:

A safeguard against jury misuse of the published authority . . . . This provision

attempts to prevent jurors from overvaluing the written word and from roaming at

large through the treatise thereby forming conclusions not subjected to expert

explanation and assistance.

Kenneth W. Graham, Jr. & Michael H. Graham, Rule 803(18): Statements in Learned Treatises,

Periodicals, or Pamphlets, 30C Fed. Prac. & Proc. Evid. § 7059 (2014 ed.).

Exhibit LL was a complete article, but the diagram of the diagnostic algorithm was the

subject of primary focus during the trial. The district court did not abuse its discretion when it

determined that there were risks associated with the jury being provided the entire article when

its contents had not been completely explored. Providers have not shown good cause why the

district court should have sent Exhibit LL to the jury room. The jury was presented with the

algorithm during trial. The fact that Providers’ counsel represented that the jury would have the

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algorithm during closing arguments, without having received an advance favorable ruling, does

not constitute good cause.

Providers did not refer to Idaho Code section 9-402 before the district court. Even if they

had, the argument would have been unavailing. The statute provides: “Historical works, books of

science or art, and published maps or charts, when made by persons indifferent between the

parties, are prima facie evidence of facts of general notoriety and interest.” I.C. § 9-402.

Assuming, without deciding, that the article contained “evidence of facts of general notoriety and

interest,” the statute is of no force or effect to the extent that it conflicts with the rule. I.R.E. 802

(“Hearsay is not admissible except as provided by these rules or other rules promulgated by the

Supreme Court of Idaho.”); I.R.E. 1102 (“Statutory provisions and rules governing the

admissibility of evidence, to the extent they are evidentiary and to the extent that they are in

conflict with applicable rules of Idaho Rules of Evidence, are of no force or effect.”). Because

there was no basis under the rule for providing the exhibit to the jury, any violation of the statute

is not a ground for the relief sought by Providers.

Providers also argue that the Hoffers waived an objection to Exhibit LL being provided to

the jury during deliberations because they did not make a hearsay objection and otherwise waited

too long to object. This argument fails because from the very beginning the Hoffers made it clear

that the contents of Exhibit LL would only be admissible as a learned treatise. When admitted

the Hoffers’ counsel stated: “I don’t object to admitting it as a learned treatise, your Honor, that’s

fine, not a substantive admission.”

Finally, even if Exhibit LL should have been given to the jury during deliberations, the

failure to give the exhibit to the jury did not affect Providers’ substantial rights. As noted by the

district court, the jury was presented with the algorithm and considerable accompanying expert

testimony during trial, had the opportunity to take notes, and the jury did not request the exhibit

during deliberations.

For these reasons, we find no basis for disturbing the verdict based upon the district

court’s refusal to provide Exhibit LL to the jury during deliberations.

B. The district court did not err when instructing the jury on negligence and

recklessness.

Providers argued that the district court should have refrained from instructing the jury

regarding recklessness until Dr. Shappard had been found to have been negligent. The district

court disagreed and instructed the jury of the law regarding recklessness as well as negligence.

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On appeal, Providers argue that an instruction regarding recklessness was unnecessary until the

jury found Dr. Shappard to have been negligent2 and that the recklessness instruction confused

the jury or misled the jury into believing that the district court had found Dr. Shappard to have

been negligent. The Hoffers respond that there is no legal basis for requiring the district court to

bifurcate the proceedings and there is no indication that the jury was confused or misled by the

instructions.

The Hoffers are correct. Providers do not identify any rule of law that would require the

trial court to require bifurcated deliberations on negligence and recklessness. As the Hoffers

point out, in Carrillo, 152 Idaho at 747, 274 P.3d at 1262, we considered an appeal from a

decision where the jury was instructed as to both negligence and recklessness, although we were

not asked to decide whether such dual instruction constituted error. Providers point to Schmechel

v. Dillé, 148 Idaho 176, 219 P.3d 1192 (2009), in support of their contention that the district

court should have bifurcated the proceedings. However, Schmechel did not announce a

requirement that the district court bifurcate deliberations as to negligence and recklessness. See

Schmechel, 148 Idaho at 187, 219 P.3d at 1203. Instead, this Court merely held that that the

district court did not abuse its discretion by choosing to not instruct the jury on recklessness until

the jury returned a verdict in excess of the statutory cap. Id.

There is no factual support for Providers’ argument that the jury was actually confused.

The special verdict form submitted to the jury was not confusing. The final question, asking

whether Dr. Shappard was reckless, was distinct from an earlier question asking whether Dr.

Shappard breached the applicable standard of health care practice.

Providers direct our attention to a question from the jury, contending that the question

demonstrates that the jury was confused by the recklessness instruction and did not fully

appreciate the significance of a finding that he was reckless. During their deliberations, the jurors

asked: “Are there penalties for Dr. Shappard and/or Dr. Walters for willful and wanton, or

reckless misconduct as defined in these instructions? What are they?” Far from suggesting

confusion on the part of the jurors, this question shows the jury fully understood that a finding

2 During oral argument, Providers’ counsel advanced an argument that the substantive content of the recklessness

instruction was erroneous. However, the record does not reveal such an objection before the trial court. A party

cannot raise an issue on appeal that relates to “the giving of a jury instruction that misstates the law unless the party

timely objected to the specific instruction on the record, stating the grounds of the objection.” Bolognese v. Forte,

153 Idaho 857, 867 n.6, 292 P.3d 248, 258 n.6 (2012); see also I.R.C.P. 51(b). Therefore, we do not consider this

claim.

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that Dr. Shappard was reckless was distinct from finding that he had breached the applicable

standard of health care practice.

Because there was no legal requirement that the district court bifurcate the jury’s

deliberations and there is nothing to suggest that the jury was, in fact, confused by the

instructions, we can find no error in the district court’s decision to simultaneously instruct the

jury on recklessness and negligence.

C. The district court did not err in denying the motion to correct the verdict.

The district court determined that the plain language of Idaho Rule of Evidence Rule

606(b) (“Rule 606(b)”) precluded consideration of juror affidavits that alleged that the special

verdict form was erroneously filled out. On appeal, Providers argue that they seek a “ministerial

correction” of the verdict rather than an inquiry into the “validity” of the verdict. Providers argue

that Idaho case law allows ministerial correction of a verdict and that Rule 606(b) only governs

the inquiry into the validity of a verdict when a party is seeks to impeach the verdict.

The plain language of Rule 606(b) does not allow clerical corrections as Providers claim.

The rule provides:

(b) Inquiry to Validity of Verdict or Indictment. Upon an inquiry into the

validity of a verdict or indictment, a juror may not testify as to any matter or

statement occurring during the course of the jury’s deliberations or to the effect of

anything upon the juror’s or any other juror’s mind or emotions as influencing the

juror to assent to or dissent from the verdict or indictment or concerning the

juror’s mental processes in connection therewith, nor may a juror’s affidavit or

evidence of any statement by the juror concerning a matter about which the juror

would be precluded from testifying be received for these purposes, but a juror

may testify on the questions whether extraneous prejudicial information was

improperly brought to the jury’s attention or whether any outside influence was

improperly brought to bear upon any juror and may be questioned about or may

execute an affidavit on the issue of whether or not the jury determined any issue

by resort to chance.

“We begin with an examination of the literal words of the rule and give the language its plain,

obvious and rational meaning.” Miller v. Haller, 129 Idaho 345, 350, 924 P.2d 607, 612 (1996)

(discussing Rule 606(b)). Interpreting this rule, this Court has stated:

In addition to specifying which matters jurors are prohibited from testifying

about, the Idaho Rules of Evidence expressly describe the only matters jurors may

testify to: “[A] juror may testify on the questions whether extraneous prejudicial

information was improperly brought to the jury’s attention or whether any outside

influence was improperly brought to bear upon any juror and . . . whether or not

the jury determined any issue by resort to chance.”

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Levinger v. Mercy Med. Ctr., Nampa, 139 Idaho 192, 197, 75 P.3d 1202, 1207 (2003) (quoting

Rule 606(b)). This Court’s interpretation is consistent with the maxim of construction expressio

unius est exclusio alterius, meaning that where a law expressly designates something, the

“designation of such things excludes all others.” Idaho Press Club, Inc. v. State Legislature of

the State, 142 Idaho 640, 642, 132 P.3d 397, 399 (2006) (quoting Local 1494 of Int’l Ass’n of

Firefighters v. City of Coeur d’Alene, 99 Idaho 630, 639, 586 P.2d 1346, 1355 (1978)).

However, Providers argue that they only seek a “ministerial correction” to the verdict,

rather than an inquiry into the “validity” of the verdict. Providers correctly observe that, for a

significant time, the corresponding federal rule of evidence was identical and many federal

courts held that Federal Rule of Evidence 606(b) did not apply to clerical errors because

corrections of such errors do not concern the validity of a verdict or the jurors’ mental processes.

Committee Notes on Rules—2006 Amendment. However, as noted by the rules advisory

committee, this exception represented a “divergence” from the “text of the rule.” Id.

Consequently, in 2006, Federal Rule of Evidence 606(b) was amended to create an exception for

when “a mistake was made in entering the verdict on the verdict form.”

Some state courts have taken a plain language approach to interpreting provisions similar

to Rule 606(b). See, e.g., Waste Mgmt. of Arkansas, Inc. v. Roll Off Serv., Inc., 199 S.W.3d 91,

95 (Ark. 2004) (“[W]e are reluctant to craft an exception to Rule 606(b) that goes beyond those

stated in the rule itself.”). We are likewise reluctant to create an exception to I.R.E. 606(b) that is

not found within the rule’s text.

Providers point to Umphrey v. Sprinkel, where this Court held “that courts may consider

affidavits in order to clarify what the verdict was, but not to impeach the verdict.” 106 Idaho 700,

707, 682 P.2d 1247, 1254 (1983). Umphrey does not assist us in our decision. The decision

predated our adoption of Rule 606(b) in 1985 and, unlike the congressional action taken as to

Federal Rule of Evidence 606(b), this Court has not amended Rule 606(b) to provide an

exception for clerical error. Based upon the plain language of the rule, we hold that the district

court did not err by ruling that consideration of the two juror’s affidavits would violate Rule

606(b).

D. The district court did not abuse its discretion by denying Providers’ motion for new

trial.

Providers’ unsuccessful motion for a new trial rested on two distinct grounds. We will

discuss those grounds in turn.

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1. Motion for new trial based on Idaho Rule of Civil Procedure 59(a)(6) (“Rule

59(a)(6)”)

The district court determined that there was sufficient evidence to support the jury’s

finding of recklessness. Providers challenge this finding, contending that the district court abused

its discretion by failing to acknowledge evidence and testimony that conflicted with the jury’s

finding of recklessness. As will be discussed more fully in Part III(E)(2), infra, our determination

that Rule 606(b) does not permit consideration of juror affidavits for purposes of correcting

alleged clerical errors in a special verdict form means that the jury’s finding of recklessness is

without legal significance. Nevertheless, we take this opportunity to reiterate our position as to

the sufficiency of trial courts’ findings for appellate review of decisions on a motion for new

trial.

Under Rule 59(a)(6), a court may grant a new trial for “[i]nsufficiency of the evidence to

justify the verdict.” “Under Rule 59(a)(6), the trial judge must weigh the evidence and determine

(1) whether the verdict is against his or her view of the clear weight of the evidence; and (2)

whether a new trial would produce a different result.” Carrillo v. Boise Tire Co., 152 Idaho 741,

749, 274 P.3d 1256, 1264 (2012) (emphasis original) (quoting Harger v. Teton Springs Golf and

Casting, LLC, 145 Idaho 716, 718, 184 P.3d 841, 843 (2008)). If a disparity in the amount that

the trial judge would have awarded “is so great that it appears to the trial court that the award

was given under the influence of passion or prejudice, the verdict ought not stand.” Id. (quoting

Harger, 145 Idaho at 718–19, 184 P.3d at 843–44).

Here, the district court determined that there was sufficient evidence to support the jury’s

finding of recklessness because “continued concerns” were expressed by the Hoffers, there were

objective signs of DDH, imaging was simple and would have been conclusive, and the problem

compounded with the passage of time. In light of this evidence, the district court determined that

“[t]he jury verdict is not against the clear weight of the evidence” and “[i]t is not likely that a

different result would occur if the case were retried.” While the district court did not expressly

state it was considering the motion under Rule 59(a)(6), its analysis addressed the inquiries

necessary to decide a motion based upon Rule 59(a)(6). The district court properly determined

whether, in its view, the verdict was against the clear weight of the evidence and whether a new

trial would produce a different result. There is no procedural error in the district court’s

approach.

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Providers argue that the district court should have more thoroughly addressed other

testimony and evidence, such as testimony that DDH is difficult to diagnose and the algorithm,

previously discussed, which Providers allege shows that Dr. Shappard followed the correct

procedure for diagnosing DDH.3 Providers argue the district court’s new trial analysis

“commit[ted] the fatal mistake of piggy-backing its new trial analysis on its analysis under the

JNOV standard” because it only addressed evidence that supported the jury’s findings. However,

the district court expressly recognized the different standards which apply to the different

motions, stating:

In considering a motion for new trial the trial court is not required to draw all

inferences in favor of the non-moving party and accept the truth of the prevailing

party’s evidence. In considering a motion for new trial the trial judge evaluates

whether the verdict is consistent with the clear weight of the evidence.

Our reading of the district court’s memorandum decision shows that, when fulfilling its duty to

independently evaluate the weight of the evidence, the district court simply discussed the

evidence that it found to be most persuasive. See Sheridan v. St. Luke’s Reg’l Med. Ctr., 135

Idaho 775, 781, 25 P.3d 88, 94 (2001) (holding a district court’s “determination to discount the

testimony of the defendant’s expert witnesses was a proper exercise of his discretion in weighing

the demeanor, credibility and persuasiveness of the evidence” when ruling on a motion for a new

trial). We can find no error simply because the district court did not exhaustively discuss all

evidence presented in the course of trial. Providers have not shown that the district court abused

its discretion by denying the motion for new trial based on Rule 59(a)(6).

2. Motion for new trial based on Idaho Rule of Civil Procedure 59(a)(5) (“Rule

59(a)(5)”)

“To uphold a ruling under Idaho R. Civ. P. 59(a)(5), it must be evident that the trial court

(1) contemplated what it would have awarded if it had been the finder of fact and (2) determined

that any difference between the jury award and what the trial court would have awarded is not so

great as to show a verdict based on prejudice or passion.” Hei v. Holzer, 145 Idaho 563, 569, 181

P.3d 489, 495 (2008) (citing Tuttle v. Wayment Farms, Inc., 131 Idaho 105, 107, 952 P.2d 1241,

1243 (1998)). When denying the motion for new trial, the district court stated: “The court cannot

3 Providers also contend that Dr. Shappard’s conduct was not nearly as culpable as that of Dr. Waters because Dr.

Waters was an orthopedic surgeon (in contrast to Dr. Shappard, who was a family doctor) who diagnosed J.H.’s

DDH but told the Hoffers that God and nature would cure her. The district court correctly observed that “[t]he

conduct of Dr. Waters is irrelevant to the finding as to Dr. Shappard. His conduct came after Dr. Shappard’s. The

jury could evaluate the conduct of each, as it did, and assign[] fault as it did.”

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say the jury verdict on the issue of recklessness, or any other issue, is against the clear weight of

the evidence.” Providers contend that the jury’s award of special damages for lost future income

was “excessive given the lack of evidence to support such an award and was the result of passion

and prejudice.”

A preliminary issue is whether the district court adequately analyzed the motion under

Rule 59(a)(5). The district court’s opinion does not cite Rule 59(a)(5) and Providers point out

that the district court did not discuss the differences between Rule 59(a)(5), (6), and (7).

This Court has ruled a district court “must disclose [the] reasoning for granting or

denying motions for a new trial . . . unless those reasons are obvious from the record itself.”

Quick v. Crane, 111 Idaho 759, 772, 727 P.2d 1187, 1200 (1986). Providers rely on Quick to

support their claim that the district court inadequately discussed the grounds for refusing to grant

the motion for new trial. In Quick, this Court remanded a case to a district court so that the

district court could state its reasons for denying each of a defendant’s separate motions when the

extent of the court’s explanation for its decision was:

I am going to at this time deny the motion for a new trial and the motion for

judgment notwithstanding a verdict and motion for remittitur. Its [sic] the court’s

feeling that there is ample evidence before this jury to justify these verdicts.

Id. at 763, 727 P.2d at 1191. This Court ruled that “since the trial court made no reference to

either I.R.C.P. 59(a)(5) or the language contained in that rule, it is impossible for this Court to

determine whether the trial court even ruled on that part of the defendants’ motion, let alone

whether he applied the correct standard for that rule.” Id. at 771, 727 P.2d at 1199. The Court

reasoned that it was difficult to review a decision under the abuse of discretion standard, which

focuses on the district court’s process, when all that the record contained was the district court’s

conclusion. Id. at 772, 727 P.2d at 1200.

Here, the district court’s written opinion went far beyond the summary conclusion that

was before the Court in Quick. Although the district court did not specifically cite to Rule

59(a)(5), it did state that it had weighed the evidence and determined that the jury verdict was not

against the clear weight of the evidence. Although the district court did not state what specific

award it would have made, this Court has not required that the trial judge’s Rule 59(a)(5)

analysis include “any specific evaluation of the award he would have made;” rather, it is

sufficient if the trial court’s decision reflects that the judge examined the damage award to

ascertain whether it was the product of passion or prejudice. Highland Enters., Inc. v. Barker,

14

133 Idaho 330, 347, 986 P.2d 996, 1013 (1999). Thus, the district court’s failure to identify the

sum it would have awarded to the Hoffers does not require us to remand for further findings.

Although a motion for JNOV and a motion for new trial present distinct inquiries, the

district court’s JNOV analysis assists us in determining the basis for the denial of the motion for

new trial. In the context of Rule 59(a)(6) motions, we have stated: “A trial court need not

separately restate and reanalyze the same facts or evidence in deciding an I.R.C.P. 59(a)(6)

motion for a new trial that were previously applied in deciding a motion for J.N.O.V. where a

proper disposition of each motion necessarily rests upon the same facts or evidence.” Karlson v.

Harris, 140 Idaho 561, 570, 97 P.3d 428, 437 (2004). In its JNOV analysis, the district court

stated there was “extensive and complex” evidence that J.H. would have “likely limitations” in

the workforce and in earning capacity. These statements clearly reflect that the district court had

weighed the evidence and concluded that there was sufficient evidence to support the award for

lost future earnings. We can find no abuse of discretion in the denial of the motion for new trial.

E. The district court did not err in denying Providers’ JNOV motion.

The district court denied Providers’ motion for JNOV, holding that substantial and

competent evidence supported the jury’s findings that (1) Dr. Shappard was reckless and (2) J.H.

suffered $750,000 in economic damages. Providers challenge these determinations. We address

them in turn.

1. We do not address the jury’s finding of recklessness because the verdict can be

upheld on the independent finding that Dr. Shappard’s conduct was negligent.

The district court determined that adequate evidence supported the jury’s finding that Dr.

Shappard was reckless and negligent. On appeal, Providers argue that substantial and competent

evidence does not support the jury’s recklessness finding but do not challenge the jury’s finding

that Dr. Shappard was negligent. The Hoffers argue that whether Dr. Shappard was reckless “has

no effect on the verdict” because the jury’s verdict can be upheld simply on the basis of Dr.

Shappard’s negligence.

The parties’ dispute centers on Idaho Code section 6-1603. The statute imposes an

inflation-adjusted4 cap on noneconomic damages in personal injury cases. The cap does not

4 Idaho Code section 6-1603 was amended in 2003 to establish a $250,000 cap on noneconomic damages, with

adjustments calculated as follows: “beginning on July 1, 2004, and each July 1 thereafter, the cap on noneconomic

damages established in this section shall increase or decrease in accordance with the percentage amount of increase

or decrease by which the Idaho industrial commission adjusts the average annual wage as computed pursuant to

section 72–409(2), Idaho Code.” 2003 Idaho Sess. L. ch. 122, § 2, p. 371.

15

apply to “[c]auses of action arising out of willful or reckless misconduct.” The parties do not

dispute that $289,000 is less than the cap provided by Idaho Code section 6-1603.

As discussed in Part III(C), supra, Rule 606(b) precludes consideration of juror affidavits

as a basis for “correcting” a verdict. Providers have not identified another legal basis for this

Court to direct the trial court to amend the jury’s verdict by substituting $750,000 for $289,000

as the amount of noneconomic damages award. Thus, for purposes of the JNOV, the jury’s

noneconomic damages award of $289,00 continues to stand. Because this figure is less than the

statutory cap and Providers do not challenge the jury’s finding that Dr. Shappard was negligent

apart from the grounds previously discussed, the jury’s finding of recklessness is without legal

significance.

“The court at every stage of the proceeding must disregard any error or defect in the

proceeding which does not affect the substantial rights of the parties.” I.R.C.P. 61; see also

Goodspeed v. Shippen, 154 Idaho 866, 870, 303 P.3d 225, 229 (2013). Because the jury’s award

may be sustained solely upon its finding of negligence, there is simply no reason for us to

consider whether substantial and competent evidence supports the jury’s finding of recklessness.

Providers argue that we should address whether Dr. Shappard’s conduct was reckless

because a label of recklessness will have future, unspecified impacts on Dr. Shappard and this

case will establish precedent affecting other physicians. We are not so persuaded. “Because an

appellant can only prevail if the claimed error affected a substantial right, the appellant must

present some argument that a substantial right was implicated.” H.F.L.P., LLC v. City of Twin

Falls, 157 Idaho 672, 686, 339 P.3d 557, 571 (2014). Providers have failed to identify any

impact on Dr. Sheppard resulting from the recklessness finding. Even if other physicians might

benefit from a ruling on this issue—a dubious proposition—such benefit would have no effect on

Providers’ substantial rights. For these reasons, we do not reach the substance of Providers’

arguments.

2. Substantial and competent evidence supported the jury’s award of damages for lost

future income.

The district court determined that the evidence supporting the economic damages award

was “extensive and complex” in light of medical, vocational, and economic testimony presented

at trial. Providers argue that the jury’s award of special damages for lost future income was not

supported by substantial and competent evidence.

16

The jury awarded $750,000 in economic damages. Although the special verdict did not

specify the components of this award, Providers acknowledge that the evidence presented at trial

would support an award of approximately $438,0005 for past and future medical expenses,

meaning that the jury awarded approximately $312,000 for future lost earnings. Providers

challenge the sufficiency of evidence supporting the award for lost future income.

“[D]amages for lost earnings in the future must be shown with reasonable certainty and

compensatory awards based on speculation and conjecture should not be allowed.” Bailey v.

Sanford, 139 Idaho 744, 751, 86 P.3d 458, 465 (2004) (quoting Warren v. Furniss, 124 Idaho

554, 559–60, 861 P.2d 1219, 1224–25 (Ct. App. 1993)). “To show future lost earnings with

reasonable certainty, the claimant must prove the extent to which her future earning power was

impaired.” Id. “Reasonable certainty requires neither absolute assurance nor mathematical

exactitude; rather, the evidence need only be sufficient to remove the existence of damages from

the realm of speculation.” Saint Alphonsus Diversified Care, Inc. v. MRI Assocs., LLP, 157 Idaho

106, 116, 334 P.3d 780, 790 (2014) (quoting Griffith v. Clear Lakes Trout Co., Inc., 146 Idaho

613, 618, 200 P.3d 1162, 1167 (2009)).

The Hoffers’ vocational rehabilitation expert, Douglas Crum, testified that he understood

that medical opinions showed J.H. would have “between two and three hip replacement surgeries

during her lifetime” and that there would be “about a 15 percent loss of function each time those

surgeries were performed.” Crum also testified that J.H. would lose employment opportunities

because she would be limited to sedentary work. He further testified that disabled workers have

higher unemployment rates; disabled “individuals in the labor market ages 21 to 64 have a

median income that is 28 percent less than those with no disability;” disabled workers are

perceived as problem workers; J.H. would lose time at work in connection with hip replacement

surgeries and would have a period of reduced function prior to each surgery; and he had worked

with hundreds of people with orthopedic problems and it is not uncommon for complications to

occur.

The Hoffers’ economic expert, Dennis Reinstein, provided the jury with tables showing

the present value of a person’s expected earning capacity based on four different levels of

educational attainment. Reinstein testified that the present value of the earning capacity of a

5 J.H.’s past medical care cost $38,928.82 and Dennis Reinstein testified that the present value of future medical

care is $398,752, for a total of $437,680.82. The balance of the jury’s award for future loss of earnings would thus

be $312,319.18.

17

person with a college degree is reduced by $12,513 for each percent of impairment. The Hoffers

correctly note that $12,513 multiplied by an impairment rating of 25% ($312,825) is almost

exactly equal to the amount of the jury’s award that the parties attribute to lost future earnings.

Although we cannot know how the jury arrived at its award, it is clear that the amount of the

award is consistent with the expert testimony presented to the jury by the Hoffers.

Providers contend that Crum’s testimony was insufficient to support the award of

damages for loss of future earnings, arguing it was speculative because it was not supported by

medical testimony. Providers clarify that they do not challenge the admission of Crum’s

testimony; rather, they claim the lack of supporting medical testimony means that Crum’s

testimony provided too uncertain a basis to support the award for lost future earnings.

As to the “medical foundation” for his testimony, Crum testified that he had primarily

relied upon the opinions of one of the Hoffers’ expert witnesses, Dr. Eric Gordon, a pediatric

orthopedic surgeon. Those opinions were contained in a deposition and disclosures that Crum

reviewed. Dr. Gordon had previously testified at the trial. Crum testified that his understanding

of J.H.’s future medical needs was also “supported” by a disclosure from Dr. Bozic that he had

read. Dr. Bozic, who did not testify at trial, is a joint replacement specialist.

Providers challenge Crum’s reliance on these physicians’ opinions, noting that Dr. Bozic

was not a witness at trial and that Dr. Gordon did not quantify J.H.’s degree of impairment or

testify that J.H. would require three future hip replacements. However, Providers identify

nothing in the rules of evidence that require Dr. Bozic to have testified in order for Crum to have

relied upon his opinions when formulating his own. Indeed, our rules of evidence explicitly

permit experts to base their opinions on evidence that may not be admissible. I.R.E. 703.

Significantly, Providers did not object to Crum’s opinions.

Dr. Gordon testified that J.H. “will end up having arthritis probably in [J.H.’s] 30s to

40s” and that DDH would affect J.H.’s future ability to work and limit J.H. to sedentary jobs. He

testified that: “My best guess is that probably [J.H.] will end up starting to get arthritis sometime

in 30s to 40s and probably ultimately a total hip [replacement], I would guess, probably around

40 or somewhere along those lines.”

Providers’ argument that insufficient evidence was presented at trial relating to J.H.’s

future medical needs overlooks the testimony of one significant witness. Kelly Lance, a family

nurse practitioner, testified extensively regarding her consultations with Dr. Gordon regarding

18

J.H.’s future medical needs in the preparation of J.H.’s life care plan. Lance testified that Dr.

Gordon held the opinion, to a reasonable degree of medical probability, that J.H. would require

hip replacement surgeries approximately twenty years apart, for a total of three such procedures.

Providers did not object to this testimony.

While Providers are correct that it is impossible to predict the exact frequency with which

J.H. will require surgical intervention that interferes with her future earning capacity, we have

recognized that justice and public policy require the wrongdoer to bear the risk of uncertainty

that is inherent in claims for prospective loss. Saint Alphonsus Diversified Care, Inc., 157 Idaho

at 116, 334 P.3d at 790. Lost future earnings need only be shown with reasonable certainty, not

absolute assurance or mathematical exactitude. Id. We hold that the award for lost future

earnings was supported by substantial and competent evidence.

F. The Hoffers are entitled to attorney fees on appeal.

The Hoffers seek attorney fees on appeal under Idaho Code section 12-121. The parties

dispute whether the issues argued by Providers have been frivolous. Although we will address

these arguments, we take this opportunity to announce that the courts of this state will apply a

different standard to claims for attorney fees under the statute, effective March 1, 2017. The

future standard to be applied is that which the Legislature has specified.

Idaho Code section 12-121 provides:

In any civil action, the judge may award reasonable attorney’s fees to the

prevailing party or parties, provided that this section shall not alter, repeal or

amend any statute which otherwise provides for the award of attorney’s fees. The

term “party” or “parties” is defined to include any person, partnership,

corporation, association, private organization, the state of Idaho or political

subdivision thereof.

“The objective of statutory interpretation is to give effect to legislative intent.” State v.

Yzaguirre, 144 Idaho 471, 475, 163 P.3d 1183, 1187 (2007). “When interpreting a statute, the

Court begins with the literal words of the statute . . . .” Williams v. Blue Cross of Idaho, 151

Idaho 515, 521, 260 P.3d 1186, 1192 (2011). “If the statutory language is unambiguous, the

clearly expressed intent of the legislative body must be given effect . . . .” Idaho Youth Ranch,

Inc. v. Ada Cnty. Bd. of Equalization, 157 Idaho 180, 184–85, 335 P.3d 25, 29–30 (2014)

(internal quotations omitted) (quoting St. Luke’s Reg’l Med. Ctr., Ltd. v. Bd. of Comm’rs of Ada

Cnty., 146 Idaho 753, 755, 203 P.3d 683, 685 (2009)). This Court does not have the authority to

modify an unambiguous legislative enactment. Verska v. Saint Alphonsus Reg’l Med. Ctr., 151

19

Idaho 889, 895, 265 P.3d 502, 508 (2011) (quoting Berry v. Koehler, 84 Idaho 170, 177, 369

P.2d 1010, 1013 (1962)).

Idaho Code section 12-121 was enacted in 1976 and amended by addition of the second

sentence in 1987. 1976 Idaho Sess. L. ch. 349, p. 1158; 1987 Idaho Sess. L. ch. 263, p. 555. For

a period of time after its enactment in 1976, the decision to award attorney fees was committed

entirely to the sound discretion of the court. Anderson v. Ethington, 103 Idaho 658, 660, 651

P.2d 923, 925 (1982); Odziemek v. Wesely, 102 Idaho 582, 583, 634 P.2d 623, 624 (1981);

Futrell v. Martin, 100 Idaho 473, 479, 600 P.2d 777, 783 (1979).

Effective March 1, 1979, this Court adopted Idaho Rule of Civil Procedure 54(e)(1)

(“Rule 54(e)(1)”),6 which limited courts’ previous broad discretion to award attorney fees to

those instances where the case was “brought, pursued or defended frivolously, unreasonably or

without foundation.”7 I.R.C.P. 54(e)(1).

The language that was initially adopted by the legislature plainly granted broad authority

to judges overseeing civil actions to award reasonable attorney fees. The plain language of the

statute did not evince the bias against attorney fee awards that is exhibited by the restrictive

“frivolous, unreasonable, or without foundation” standard of the court rule. The Legislature’s

decision to employ the word “may” reflects a clear intent to grant discretion to courts to award

attorney fees to prevailing parties. See Rife v. Long, 127 Idaho 841, 848, 908 P.2d 143, 150

(1995) (“This Court has interpreted the meaning of the word ‘may’ appearing in legislation, as

having the meaning or expressing the right to exercise discretion.”). This discretion is broad

since, unlike this Court’s rule, Idaho Code section 12-121 contains no language limiting the

court’s discretion.

Since the rule was adopted, the Legislature has expressed an intention to confer greater

discretion to courts than is found within the rule. House Bill 263, the 1987 legislation that

resulted in the amendment to Idaho Code section 12-121, contained an uncodified statement of

legislative intent: “It is the intent of the legislature of the state of Idaho that this act grant

6 On July 1, 2016, Rule 54(e)(1), was divided into distinct subsections. The provisions relating to Idaho Code

section 12-121 are now designated as Idaho Rule of Civil Procedure 54(e)(2). 7 The rule was adopted because proponents of the rule were concerned by a lack of uniform application of the statute

by judges, result in “judge shopping.” Hon. Justice Jesse R. Walters, Jr., A Primer for Awarding Attorney Fees in

Idaho, 38 Idaho L. Rev. 1, 18 (2001). Opponents of Rule 54(e)(1) contended that its adoption violated separation of

powers principles because the Court had effectively amended Idaho Code section 12-121 by adopting the rule. See,

e.g., Minich v. Gem State Developers, Inc., 99 Idaho 911, 922, 591 P.2d 1078, 1089 (1979) (Bistline, J., specially

concurring).

20

prevailing litigants in civil actions the right to be made whole for attorney’s fees and costs when

justice so requires.” 1987 Idaho Sess. L. ch. 263, § 1, p. 555.8 This Court had previously

recognized that this was the purpose for which Idaho Code section 12-121 was originally

adopted. Futrell, 100 Idaho at 479, 600 P.2d at 783 (“The purpose of I.C. § 12-121 was in proper

cases to impose the actual costs of litigation on the unsuccessful parties, in the court’s

discretion.”). We are unable to continue to ignore the clear intention of the Legislature by

continuing to apply the court rule. Thus, in the near future, the courts of this state will apply the

standard expressed by the Legislature: prevailing parties in civil litigation have the right to be

made whole for attorney fees they have incurred “when justice so requires.”

We recognize that today’s decision overturns a vast body of case law interpreting Idaho

Code section 12-121 through the distorting lens of Rule 54(e)(1) and are fully mindful of the

constraints imposed by the doctrine of stare decisis. Stare decisis requires that this Court follow

“controlling precedent unless that precedent is manifestly wrong, has proven over time to be

unjust or unwise, or overruling that precedent is necessary to vindicate plain, obvious principles

of law and remedy continued injustice.” State v. Owens, 158 Idaho 1, 4–5, 343 P.3d 30, 33–34

(2015).

We can conceive of no principles of law that are more plain or obvious than these: (1) it

is the province of the Legislature to make and amend laws; and (2) this Court is without

authority to amend laws enacted by the Legislature because we think them unwise. See Idaho

Const. art. III, § 1 (The legislative power of the state shall be vested in a senate and house of

representatives. . . .”); Idaho Const. art. II, § 1 (“no . . . collection of persons charged with the

exercise of powers properly belong to one of these departments shall exercise any powers

properly belong to either of the others. . . .”). Because the court rule is inconsistent with the

constitutional allocation of powers between the coordinate branches of Idaho’s state government,

it may no longer be applied.

We recognize that this Court’s long-belated recognition of express legislative intent may

have profound effects on litigants. Thus, we have determined that it is appropriate to give the

8 All portions of a bill that is passed by the Legislature become law in the absence of a gubernatorial veto, even if

not compiled in the Idaho Code. We recently explored this issue in Peterson v. Peterson, 156 Idaho 85, 320 P.3d

1244 (2014). There, the district court held that a retroactivity clause contained within a bill which was not assigned a

statutory designation within the Idaho Code “was merely legislative history” and could not be considered when

reviewing unambiguous statutes. Id. at 88, 320 P.3d at 1247. We held that the district court erred in so holding,

stating: “The entire bill became a law regardless of how it was compiled in the Idaho Code.” Id. When House Bill

253 became law in 1987, Section 1 became law, despite the absence of a statutory designation.

21

bench and bar advance notice of the effective date of the new rule. This new rule of law will

become effective on March 1, 2017, and will have prospective effect, applying to all cases that

have not become final as of that date.9

Next, we turn to the Hoffers’ claim for attorney fees on appeal where we will apply the

current standard and evaluate whether Providers’ appeal was pursued “frivolously, unreasonably

or without foundation.” We find this to be such an instance. In our view, Providers’ appeal was

little more than a request that this Court ignore the plain language of Idaho Rule of Evidence

803(18) and second-guess the jury and district court by reweighing the evidence. For this reason,

we award the Hoffers attorney fees incurred in the defense of this appeal.

IV. CONCLUSION

We affirm the judgment of the district court. We award attorney fees and costs on appeal

to the Hoffers.

Chief Justice J. JONES and Justice EISMANN, CONCUR.

BURDICK, J., concurring and dissenting.

I concur in all portions of the opinion; however, I cannot agree with Part III(F), where the

majority decides to repeal Idaho Rule of Civil Procedure 54(e)(2) and, in doing so, to overturn a

vast body of Idaho law. I see no reason in light of the many attorney fee statutes that the Idaho

legislature has imposed upon its citizens to make such a drastic change.

The majority decides to replace Rule 54(e)(2)’s enumerated grounds—frivolous,

unreasonable, or without foundation—with a standard permitting attorney fees to be awarded

“when justice so requires.” The majority highlights awarding attorney fees “when justice so

requires” honors the Legislature’s intent and Idaho Code section 12-121’s plain language. Yet

the majority leaves trial judges at bay, with no guidance to decipher when justice will “so

require” attorney fees to be awarded. I believe that Rule 54(e)(2)’s enumerated grounds filled

this void by accurately defining “when justice so requires.” Additionally, Rule 54(e)(2)’s

enumerated grounds gave sideboards to trial courts’ discretion. However now, with such an

amorphous standard, there will be no effective appellate review of attorney fee awards.

9 On September 7, 2016, this Court voted to amend Rule 54(e), Idaho Rules of Civil Procedure, by rescinding

subsection 2, effective March 1, 2017.

22

I agree that the Idaho Legislature may pass attorney fee statutes, but on the other hand, I

believe that the Idaho judiciary has the right to promulgate reasonable rules that will in fact help

trial courts follow that statutory enactment. E.g., I.C. § 1-212 (“The inherent power of the

Supreme Court to make rules governing procedure in all the courts of Idaho is hereby recognized

and confirmed.”). To that end, I see Rule 54(e)(2) as nothing more than a guide to help Idaho’s

trial judges define “when justice so requires.”

Moreover, I believe that the majority’s analysis will further inhibit access to justice and

tilt the table even further toward moneyed interests in our courts. The majority’s analysis

signifies a prominent step toward adopting the English Rule of attorney fee awards, whereby the

losing party must pay for the prevailing party’s attorney fees. It is well established that broad,

discretionary fee-shifting statutes raise the stakes in litigation—that is, parties will litigate not

just for a judgment, but to obtain payment of their attorney fees and to avoid the other party’s

attorney fees.10

As a result, the majority’s analysis will chill litigation. And, with litigants

reluctant to vindicate their rights in court, I perceive that litigants will actually have to spend

more on litigation costs. The cost of litigation in Idaho will now reflect the prospect of having to

pay the adverse party’s attorney fees. Indeed, I draw attention to Chief Justice Jones’s concurring

opinion in Eyer v. Idaho Forest Grp., S. Ct. No. 43532 (2016) (Jones, C.J., concurring)

(acknowledging “the legal system catastrophically failed [the appellants]” because they were

required to pay a minimum of $185,755.30 of attorney fees after unsuccessfully seeking redress

for a $1,600 timber trespass). This, in turn, will inhibit the valuable advancement of Idaho

common law and deter litigation for new causes of action. In this case, the Court could have and

did assert that attorney fees were proper under existing Idaho Code section 12-121 and Idaho

Rule of Civil Procedure 54(e)(2). Therefore, this drastic action should not have been taken

without further input from judges and attorneys.

Justice W. JONES CONCURS.

10

The United States Supreme Court recognized in 1967 that “[i]n support of the American rule, it has been argued

that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit,

and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for

losing included the fees of their opponents’ counsel.” Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S.

714, 718 (1967). The widely respected Judge Richard Posner of the United States Court of Appeals for the Seventh

Circuit similarly recognized that “[t]he English rule deters litigation by (1) increasing the variance of the expected

outcome of a lawsuit, and hence reducing the utility of litigation compared to settlement for the risk averse, and (2)

penalizing more heavily errors in predicting the outcome of a lawsuit.” Richard A. Posner, The Economic Approach

to Law, 53 Tex. L. Rev. 757, 782 (1975).